Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
8/4/2023
Tercier v. Univ. of Miami (Fla. App. Aug. 2, 2023)
Opinion affirming dismissal. Plaintiff, a former nursing student at the University of Miami, brought contract claims against the University after he twice failed clinical placement courses and was dismissed from the program due to concerns regarding his clinical skills. In affirming dismissal, the Florida Court of Appeals noted that under the program’s Student Handbook, failure of a course is grounds for dismissal, and it found that his allegations that the failing grades were based on discriminatory animus were vague and conclusory.
Topics:
Academic Performance and Misconduct | Internships, Externships, & Clinical Work | Students
Date:
7/28/2023
Oross v. Kutztown Univ. (E.D. Pa. July 25, 2023)
Memorandum granting-in-part and denying-in-part Plaintiff’s and Defendants’ Motions for Summary Judgment. Plaintiff, a tenured associate professor at Kutztown University who had recently undergone a heart transplant, brought discrimination and retaliation claims against the University and multiple officials after they denied his request to teach remotely for Fall 2021. The court granted summary judgment to plaintiff on his intentional discrimination and failure to accommodate claims. In this, it rejected the University’s assertion that plaintiff’s request to teach remotely was a fundamental alteration and an undue burden, noting that the University regularly offered at least some courses online and had successfully offered all of its courses online during the COVID-19 closure. Citing deposition testimony suggesting that the University adopted its stance that rescheduling in-person courses for online delivery would pose an undue hardship only after receiving several individual requests, the court also found that this policy was more likely than not pretextual. Turning to plaintiff’s retaliation claims, the court found a triable issue of fact as to the denial of requests made after he began to publicize his complaints, but it awarded summary judgment to the University as to his requests made prior to this protected activity. The court also ordered a trial on damages in plaintiff’s discrimination and failure to accommodate claims.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation
Date:
7/28/2023
Goulet v. The Univ. of Miss. (N.D. Miss. July 24, 2023)
Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a tenured full professor in the Biology Department at the University of Mississippi, brought discrimination and Equal Pay Act claims against the University alleging that other faculty members were given “higher raises for less merit.” In granting summary judgment to the University, the court held that plaintiff failed to identify a proper comparator within her department, noting that (1) plaintiff has the highest salary of any member of her department other than the department chair, (2) plaintiff had received a merit raise every year in which merit raises were available in the department, (3) three comparators who received a higher percentage merit raise than plaintiff were still paid less overall, and (4) four now-retired comparators within plaintiff’s department who were paid more had more years of service than plaintiff.
Topics:
Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment
Date:
7/28/2023
Bahl v. N.Y. Coll. of Osteopathic Med. of N.Y. Inst. of Tech. (E.D. N.Y. July 21, 2023)
Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a former student in the Doctor of Osteopathic Medicine program at the New York Institute of Technology who had been diagnosed with ADHD and generalized anxiety disorder and who had already once failed a required competency exam administered by the National Board of Osteopathic Medical Examiners (NBOME), brought a failure to accommodate claim against the Institute after it declined his request for a six-month leave of absence. Plaintiff had already taken a 180-day leave that was standard for students who had failed the NBOME exam. The Institute proposed instead a three-month leave contingent upon NBOME approving his testing accommodations and his test results being available by the start of the next semester. In permitting plaintiff to proceed, the court found that a jury could find that the Institute’s counter-proposal was not plainly reasonable and that granting the additional time would not be an undue hardship or substantial modification of the Institute’s program.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
7/28/2023
Hogan v. S. Methodist Univ. (5th Cir. July 20, 2023)
Opinion reversing dismissal and certifying question to the Texas Supreme Court. Plaintiff, a student at Southern Methodist University during Spring 2020, on behalf of himself and a putative class, brought contract, conversion, and unjust enrichment claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court dismissed his claims, finding, as relevant here, his contract claim “long on words but short of actionable detail” and recovery barred by the Texas Pandemic Liability Protection Act, which was passed in June 2021. Applying its own subsequent precedent, the Fifth Circuit reversed dismissal of plaintiff’s contract claim, finding that the district court failed to consider whether plaintiff’s interpretation of “educational purposes” in the University’s Student Rights and Responsibilities Agreement to include in-person services was reasonable and, if so, whether that term is ambiguous. Then, noting that two federal district courts have split on the question, the court certified to the Texas Supreme Court the question, “Does the application of the Pandemic Liability Protection Act to Hogan’s breach-of-contract claim violate the retroactivity clause in article I, section 16 of the Texas Constitution?”
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
7/28/2023
Doe v. Horne (D. Ariz. July 20, 2023)
Order granting Preliminary Injunction. Plaintiffs, two transgender girls attending middle schools in Arizona, sought a preliminary injunction to prevent implementation of Arizona’s Save Women’s Sports Act, which would preclude them from playing on girls’ sports teams. In granting the injunction, the court, after extensive findings of fact, held that plaintiffs were likely to succeed in their equal protection claim, finding that the categorical ban on transgender girls playing in girls’ sports is not substantially related to the asserted interests in ensuring equal opportunities for girls to play sports or in preventing safety risks. The court similarly held that plaintiffs were likely to succeed in their Title IX claim, finding that the Act discriminates on the basis of sex and “deprives [p]laintiffs of the benefits of sports programs and activities that their non-transgender classmates enjoy.”
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination
Date:
7/28/2023
Ruizhu Dai v. Le, et al. (W.D. La. July 20, 2023)
Memorandum Ruling granting Defendants’ Motion for Summary Judgment. Plaintiff, a former graduate student and graduate assistant at Louisiana Tech University, brought constitutional and contract claims against multiple University officials after she received negative feedback on a public presentation and a low grade in a related class, was terminated from her assistantship, and resigned from the program when she was unable to form a dissertation committee. After the presentation, plaintiff emailed her professors taking issue with their critique of her research methodology. She also unsuccessfully appealed both her grade and the termination of her assistantship. In granting summary judgment to the defendants, the court held that plaintiff’s First Amendment claims failed because her email addressed neither the public nor a matter of public concern. Her due process claim failed because the continuation of her assistantship was contingent upon satisfactory performance and because she was afforded sufficient process upon its termination. Finally, her contract claim failed (1) because her contract was between her and the University, rather than the individual officials, and (2) because her assistantship letter provided that unsatisfactory performance could result in termination.
Topics:
Academic Performance and Misconduct | Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation | Students
Date:
7/28/2023
Fizulich v. Killings (N.D. N.Y. July 20, 2023)
Memorandum-Decision and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former student-athlete at the State University of New York at Albany who is white, brought tort claims against the University’s basketball coach, who is African American, and discrimination and contract claims against the University in the wake of an incident in which he alleges the coach assaulted him in the locker room during an away game. Plaintiff alleges that the University disciplined and planned to terminate the coach, but later reversed the termination decision following community pressure, which plaintiff alleged resulted in his constructive termination from the team. The court permitted plaintiff’s Title VI discrimination claim to proceed, finding his factual allegations sufficient to support a plausible inference of discrimination. The court, however, held that plaintiff’s contract claim, which asserted that the University did not offer him the protective measures provided for in its Violence Policy, was barred by sovereign immunity.
Topics:
Contracts | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Student Athlete Issues | Students
Date:
7/28/2023
Wade v. Univ. of Mich. (Mich. App. July 20, 2023)
Opinion affirming summary judgment in favor of the University. In 2015, plaintiff sued the University of Michigan after it denied his request for a waiver to its ordinance prohibiting the possession of firearms on campus. In 2022, the Michigan Supreme Court remanded his Second Amendment challenge for consideration in light of the U.S. Supreme Court’s decision in NY State Rifle & Pistol Ass’n, Inc. v. Bruen. On remand, the Court of Appeals of Michigan affirmed summary judgment, holding that although plaintiff’s proposed conduct is presumptively protected by the Second Amendment, the University is a “school” and, accordingly, a “sensitive place” where carrying arms may nevertheless be prohibited consistent with the Second Amendment.
Topics:
Constitutional Issues | Second Amendment & Guns on Campus
Date:
7/28/2023
Doe v. Marshall Univ. Bd. of Governors (S.D. W.Va. July 19, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a student at Marshall University who had been the subject of multiple Title IX complaints, brought Title IX retaliation and selective enforcement, due process, equal protection, and intentional infliction of emotional distress claims against the University and its Title IX Coordinator, asserting numerous procedural irregularities in the handling of the investigation and resolution of a complaint made by Jane Roe, against whom he had also made a cross-complaint. The court permitted plaintiff’s retaliation claim to proceed, finding he had sufficiently alleged that the University solicited Roe’s complaint after he had succeeded in getting earlier complaints against him dismissed. It permitted his selective enforcement claim to proceed, finding his allegations of “numerous, lopsided, and often significant procedural defects” sufficient to raise an inference that they resulted “not by simple human error.” It similarly found his allegations of differences in the University’s handling of his complaint as compared to Roe’s sufficient to permit his equal protection claim to proceed. It, however, dismissed his due process claim, finding the wrongs alleged insufficient to assert a constitutional deprivation. Finally, it permitted his IIED claim against the Title IX Coordinator to proceed, finding he had sufficiently alleged violations of clearly established rights.
Topics:
Students | Title IX & Student Sexual Misconduct

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